Type: Opinions of the Advocate general

Authority: European Authorities: Euopean Union' Court of Justice

Date: 10/18/2012

Subject: The Advocate General, premising that the provisions of the Charter of Fundamental Rights of the European Union form part of the primary law of the Union and that Fundamental rights, as guaranteed by the European Convention for the Protection of Fundamental Rights and Freedoms constitute general principles of Union law, affirmed that the deprivation of liberty and forcible surrender of the requested person that the European arrest warrant procedure entails constitutes an interference with that person’s right to liberty for the purposes of Article 5 of the Convention and Article 6 of the Charter. That interference will normally be justified as ‘necessary in a democratic society’ by virtue of Article 5(1)(f) of the Convention. Nevertheless, detention under that provision must not be arbitrary. Article 6 of the Charter falls to be construed in the same way as Article 5(1) of the Convention. The competent judicial authority of the Member State executing a European arrest warrant can refuse the request for surrender where it is shown that the human rights of the person whose surrender is requested have been infringed, or will be infringed, as part of or following the surrender process. However, such a refusal will be competent only in exceptional circumstances. In cases involving Articles 5 and 6 of the Convention and/or Articles 6, 47 and 48 of the Charter, the infringement in question must be such as fundamentally to destroy the fairness of the process. Past infringements that are capable of remedy will not found such an objection. Finally, the Advocate General proposed that the Court reply that the competent judicial authority of the State executing a European arrest warrant cannot refuse the request for surrender on the ground that the State issuing the European arrest warrant has failed to transpose or fully to transpose or has incorrectly transposed the Framework Decision without being in breach of the obligations authorised by the founding Treaties and the other provisions of European Union law.

Parties: Ciprian Vasile Radu

Classification: Freedoms - Art. 6 Personal security - Justice - Art. 47 Justice: remedy - Justice: effective - Art. 48 Rights of defence - General provisions - Art. 52 Scope of guaranteed rights

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